Gardner, take two


Unfortunately, on Tuesday, Dec. 18., Colorado Senator Cory Gardner’s ninth-inning attempt to allow states to implement their own marijuana laws without federal interference — which he wanted to add as an amendment to the criminal justice reform bill (First Step Act) that the Senate is considering — didn’t get to first base.

Gardner said the votes to include his amendment were there if he could get a stand up vote on the Senate floor. But getting floor consideration of the amendment to the criminal justice reform bill required unanimous consent of the Senate at this stage of the legislative process, and Sen. Charles Grassley (R-Iowa) objected.

Grassley, who is sponsoring the criminal justice reform bill, is also a long-time foe of marijuana legalization.

Last June, Republican Gardner and Sen. Elizabeth Warren (D-Massachusetts) introduced a bill titled the Strengthening the Tenth Amendment Through Entrusting States Act (aka the STATES Act), which would guarantee that residents and businesses of states that legalized either recreational or medical marijuana wouldn’t be prosecuted under federal law, provided they were following their states’ laws.

The bill would write into federal law the protections the Obama admistration gave to states in a memo issued by the Justice Department telling U.S. attorneys not to pursue federal marijuana cases against pot users and businesses in states that had made marijuana legal (the Cole Memorandum).

The STATES Act also would make it federally legal for banks to open accounts and make loans to marijuana businesses in states that have legalized pot.

Gardner introduced the bill after then-Attorney General Jeff Sessions revoked the Cole memo. That prompted Gardner to go ballistic, because Sessions had told him prior to his confirmation hearing that he wouldn’t mess with the memo. In retaliation Gardner held up Senate confirmation votes on all new U.S. Attorneys until he got some relief. He agreed to lift his hold orders after Trump said he would support the STATES bill.

The bill attracted bi-partisan support, but it didn’t move in the Senate. It’s not clear why, but Senate Majority Leader Mitch McConnell (R-Kentucky) made it clear that while he was strongly in favor of legalizing hemp, he was against legalizing recreational marijuana. McConnell sponsored the hemp legalization amendments to the just-passed Farm Bill.

Moreover, the STATES Act would have to be considered by the Senate Judiciary Committee, and Grassley is the committee’s chairman.

The criminal justice reform bill has already cleared a Senate-House conference committee, which is why unanimous consent was required for Senate consideration of further amendments.

Following Grassley’s objection, Gardner took to the Senate floor and made a strong pitch for his provisions, which are certain to be re-introduced when the new Congress convenes in January.

“This legislation is the embodiment of the federalism our Founders envisioned,” he said. “It allows each state to move — if at all — at its own pace.

“It lets states like Colorado be the laboratory of democracy the American people have come to expect. But most importantly, it lets Colorado be Colorado, South Carolina be South Carolina, and Florida be Florida — and they all will have federal prosecutors backing up whatever decision they make with respect to marijuana.

“It’s hard to think about federal criminal justice reform without thinking about the biggest problem that federal criminal law creates for Colorado: the refusal to respect the will of Coloradans when it comes to their decision on marijuana…” he said. “You shouldn’t go to federal prison for following state law. That in its essence is sentencing reform.”

Grassley said Gardner’s amendment was “a backdoor to legalization” and “allows states the right to break existing law,” which is a dishonest characterization of Gardner’s amendment. Changing a law is not the same thing as allowing someone to “break” the law that was changed.

Earlier this year Democratic Minority Leader Chuck Schumer submitted a bill that would remove marijuana from the Controlled Substances Act altogether, effectively legalizing it at the federal level everywhere. That bill is also certain to be re-submitted, and with support for legalization rapidly growing, marijuana prohibitionists like Grassley may end up finding Gardner’s states rights approach more palatable.

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